Many Americans working for private companies are under the mistaken impression that they cannot be fired without a valid cause or for no reason. In reality, the vast majority of Americans working for private companies are “at-will” employees, which means that they can be fired at any time and for no reason at all. This comes as a surprise to many people who contact lawyers after they have been terminated. It appears as if private businesses prefer that people believe they have some sort of inherent right or contractual protection at work, it makes them less likely to organize or unionize to fight for such rights – a different topic all together.

Now, that we have covered that any American worker who does not work for the government, is not in a union, or has no employment contract can be fired for no reason, the question is whether they can be fired for any reason. The answer to that is no.

Federal, state, and, in some municipalities, local law provide some protection to job applicants or workers who are fired, demoted, not promoted, suspended (with or without pay), or treated differently than other workers for unlawful reasons. What are those unlawful reasons? First, let’s look at discrimination because of (1) Race, (2) Color or Skin Complexion, (3) Gender, (4) Religious Beliefs, (5) or National Origin. Federal law prohibits employers from discriminating against employees on the basis of any one of these categories.

Discrimination Because of Race, Color, Gender, Religion and National Origin

Title VII

Title VII of the Civil Rights Act of 1964 (“Title VII”) is a federal law that prohibits employers with 15 or more employees from discriminating against job applicants or employees because of race, color, religion, sex or national origin.

Does “discrimination” mean that your employer has to fire you? No. Title VII prohibits discrimination in “any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training fringe benefits, and any other term or condition of employment.”[1] Any aspect of employment also includes recruitment or job interviews. If your employer has 15 or more employees and treated you differently in any aspect of your employment because of your race, color, religion, sex or national origin, they have violated federal law.

Title VII also prohibits harassment on the basis race, skin complexion or color, religious beliefs, gender or nationality and sexual harassment. Harassment includes offensive remarks or symbols displayed at work. Sexual harassment includes, unwelcome sexual advances, remarks of a sexual nature, verbal or physical acts of a sexual nature. Isolated incidents or harmless teasing will usually not rise to the level of harassment or sexual harassment, unless the incidents are so frequent or severe that they constitute “a hostile work environment.” The phrase “hostile work environment” is often misused to connote a tyrannical boss or harsh working conditions, however, the phrase only applies in instances of frequent or severe comments or displays of discrimination based on race, skin complexion or color, religious beliefs, gender, or nationality. If your boss, supervisor, or co-workers yell, scream, curse or treat you poorly, but it is not related to any of those categories, it is not unlawful conduct under Title VII.

Company policies that apply to all employees may still be illegal under Title VII if the policy negatively impacts members of certain race, color, religion, gender or national origin, if the policy is not job-related and necessary to the operation of the business. This is designed to prevent a seemingly neutral policy that adversely affects members of one of these protected categories.

Administrative Requirements for Title VII Claim

To bring a claim under Title VII, a claimant must first file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) (there is an office in Philadelphia) within 180 days[2] of the discrimination. The EEOC will investigate and make a finding. If the EEOC finds discrimination, it has the authority to file a lawsuit on behalf of the employee, but the EEOC will not file a lawsuit in all cases where it finds discrimination. If the EEOC finds that there is no discrimination, they will issue a “notice of right-to-sue”, which allows the claimant to file a lawsuit in federal court, which must be filed within 90 days of the EEOC’s determination. The EEOC’s determination that there was no discrimination has no bearing on the validity of the lawsuit. The EEOC is an underfunded, overworked government agency without the time or resources to adequately investigate every charge of discrimination, which results in the EEOC often issuing notices of right-to-sue”.

Damages Under Title VII

What are you entitled to if your suit is successful under Title VII? The Court can order that you be reinstated if you were fired and award back pay. If reinstatement is not feasible under the circumstances, the Court may award back pay and front pay in lieu of reinstatement. You may also recover compensatory damages for future loss, emotional distress, pain & suffering, inconvenience, mental anguish & loss of enjoyment of life. If your employer acted with malice or reckless indifference, you may also recover punitive damages to punish the unlawful conduct.

Compensatory damages and punitive damages are capped under Title VII based on the size of your employer. The sum of the amount of compensatory damages awarded under Title VII for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses, and the amount of punitive damages awarded under Title VII, shall not exceed, for each complaining party:

Up to 100 Employees: $50,000;

101-200 Employees: $100,000;

201-500 Employees: $200,000; and

500+ Employees $300,000

The Court may also award the “prevailing party”, i.e. the winner, his or her attorney’s fees and costs (including expert witness fees).

Race Discrimination Claim under Section 1981

What if your employer is discriminating against because of race but does not have more than 15 employees? You still have a claim. Title 42 U.S.C. §1981 (“Section 1981”) guarantees all persons the right, inter alia, “to make and enforce contracts.” This law prohibits intentional racial discrimination in the workplace.[3] Section 1981 applies to the same type of illegal conduct as Title VII, but does not require that an employee bring a charge of discrimination before the EEOC. In fact, Section 1981 may give a claimant up to four years to file a lawsuit, depending on whether the claim was made possible by the 1991 Amendment to the Civil Rights Act.

Section 1981 does not permit recovery for back or front pay, but permits recovery for compensatory damages and punitive damages without any cap on the recovery.

The court, in its discretion, may allow the prevailing party in a Section 1981 claim to recover a reasonable attorney’s fee (including expert fees), as part of the costs.

State Law Claims –The Pennsylvania Human Relations Act (“PHRA”)

If you are employed in Pennsylvania by an employer, employment agency or labor organization, which employs more than four employees, the PHRA protects you from discrimination based on “race, color, familial status, religious creed, ancestry, age, sex, national origin, handicap or disability, use of guide or support animals because of the blindness, deafness or physical handicap.”[4] Leaving aside the additional protected categories, the PHRA differs from Title VII in two major respects. First, there is no right to a jury trial for a violation of the PHRA, however, if you bring the claim in federal court, the Seventh Amendment provides for a jury trial. Second, unlike Title VII (but similar to Section 1981), the PHRA contains no cap on compensatory or punitive damages.

A claim under the PHRA also requires that a claim be made to the Pennsylvania Human Relations Commission (“PHRC”) within 180 days. A lawsuit must be filed within two years of the PHRC issuing a finding of no probable cause.

PHRA claims can be brought simultaneously with Title VII and Section 1981 claims.

To bring a claim under the Philadelphia Fair Practices Ordinance, you must file a complaint with the Philadelphia Commission on Human Relations within 300 days of the violation. The Commission must investigate the complaint within 30 days and complete its investigation within 100 days. Either party can appeal the Commission’s findings or notice of inaction within 30 days and bring a lawsuit in State or Federal Court.

The Philadelphia Commission on Human Relations will not accept a complaint if the same complaint was filed with the PHRC.

Back pay, compensatory damages and punitive damages (limited to $2,000 per violation) are available under the Philadelphia Fair Practices Ordinance, however, the Ordinance does not expressly provide for a jury trial.

New Jersey Law Against Discrimination (“LAD”)

New Jersey’s law against discrimination prohibits any New Jersey employer (regardless of number of employees) from discriminating because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex, gender identity or because of a handicap.

The LAD does not require that a charge be made to an administrative agency. An employee can file a lawsuit directly in New Jersey’s Superior Court within two years of the violation. Back pay and front pay, Compensatory damages for emotional distress and punitive damages are available under LAD. The prevailing party may also cover reasonable attorney’s fees.

The DC Human Rights Act protects 19 separate classifications from discrimination in the workplace by employers, employment agencies or labor organizations in the District of Columbia, including race, color, religion, national origin, and gender and sexual harassment.

An employee or job applicant who has suffered discrimination must elect to bring his or her claim to the DC Office of Human Rights within one year of the violation or may file a lawsuit within one year of the violation. If the employee files with the DC Office of Human Rights, the employee will not be able to bring a lawsuit. Instead, a mediation between the parties will be scheduled before any investigation is conducted. The DC Office of Human Rights must complete its investigation within 120 days of the filing of the Complaint. If the Office finds probable cause of a violation, then a hearing is scheduled before three commissioners. The commissioners may order reinstatement, back pay, front pay, compensatory damages and award attorney’s fees and costs. The commissioners findings may be appealed to the District of Columbia Court of Appeals.

The same relief available in the administrative hearing is available if a private lawsuit is filed instead.

In the next article, we will look at age discrimination.

If you have any questions or would like to speak to an attorney regarding a claim based on any of the subjects discussed above, contact Klaproth Law PLLC for a free consultation.

Klaproth Law PLLC handles most employment discrimination cases on a contingency fee basis, which means we don’t get paid, unless you recover.

This article is solely for educational and informational purposes and should not be construed as legal advice, nor should it be construed as a substitute for advice of counsel. The article is also written as a broad overview of the law and is not an exhaustive examination of any of the topics addressed. Klaproth Law PLLC recommends that all readers seek specific advice from Klaproth Law PLLC about their particular legal issues.

[2] This time-period is extended in Pennsylvania to 300 days for federal claims, but any state claim under the Pennsylvania Human Relations Act (see infra) must be filed within 180 days. A claim filed with the Pennsylvania Human Relations Commission (state equivalent of EEOC), alleging violations of the Pennsylvania Human Relations Act can be cross-filed with the EEOC to allege the federal law violations.

[3] Unlike Title VII, Section 1981 does not address discrimination for any category other than race.